When MediaCorp TV Singapore discovered that a local company called RecordTV designed, operated and owned a website (www.recordtv.com), which allowed members of the public to request free-to-air broadcasts and films owned by MediaCorp to be recorded for viewing, it immediately sent cease-and-desist letters to RecordTV.
RecordTV in turn filed an action against MediaCorp for groundless threats of copyright infringement. In its defence, MediaCorp alleged that there had been copyright infringement of both its TV broadcasts and films. The Court was required to decide whether, at the time the cease and desist letters were issued, there had been copyright infringement by RecordTV.
To determine the main issue of copyright infringement by RecordTV, the Court posed three questions: 1) Is RecordTV liable for infringement by making copies of MediaCorp's broadcasts and films? 2) Is RecordTV liable for communicating MediaCorp's broadcasts and films to the public? 3) Can RecordTV rely on fair dealing provisions as a defence?
On question 1, RecordTV claimed that the maker of the copies was in fact the end-user and therefore it should bear no liability. In support of this claim, RecordTV explained that it had no control over the programmes that were being aired by MediaCorp. MediaCorp, on the other hand, rebutted this claim by arguing that the volitional control over making the copies resided in RecordTV and not the end-user. The Court eventually agreed that it was the end-user who asked for the recordings and was therefore the maker of the copies.
Having said that, although there was in effect no direct infringement by RecordTV, was there contributory infringement and authorisation of infringement on the part of RecordTV? The Court said that if the end-user knew that RecordTV had no authority to grant them the right to make copies of MediaCorp's broadcasts and films, then there would be no contributory infringement or authorisation of infringement. However, in this case, RecordTV had clearly stated in their website's Frequently Asked Questions section that it had consulted with the relevant media authorities in Singapore and obtained all necessary regulatory licences from the Singapore Government. This would therefore lead the consumer to believe that RecordTV had in fact the authority to provide its recording service to them. In the end, the Court decided that, though RecordTV was not liable for making infringing copies of the broadcasts and films, it did nonetheless authorise the making of the copies by its users.
On question 2, the Court explained that while it was accepted that the end-user was the one who had control over the programmes to be recorded, the subsequent transmission of the requested programmes was effected by a technical process controlled by RecordTV – the party "responsible for determining the content of the communication upon playback". Therefore, the Court held that in communicating the broadcasts and films to members of the public, RecordTV had infringed MediaCorp's copyright.
On question 3, RecordTV argued that it was a network service provider within the meaning of section 193A of the Copyright Act and therefore enjoyed immunity from liability. The Court clarified that a "network service provider is a business or organisation that sells bandwidth or network access by providing direct access to the internet. In other words, a network service provider provides the service of enabling a person to connect to a network". In the Court's view, RecordTV operated a website which allowed consumers to make copies of copyrighted programmes and did not qualify as a network service provider. Had RecordTV carried out the transmission, routing and provision of connections or storage through an automatic technical process, then they could have possibly been protected against liability for merely being a network service provider. However, since consumers had to select which programmes they wanted to record, there was nothing automatic about the manner in which the recordings were eventually chosen and transmitted on RecordTV's website. This meant that RecordTV could not be regarded as a network service provider and was therefore not protected from liability.
On the issue of fair dealing, the Court had to consider five issues: 1) whether the dealing was for a non-profit educational purpose or a commercial benefit; 2) the nature of the audio-visual item itself; 3) the extent that was copied in relation to the whole audio-visual item; 4) the effect of the dealing on the potential market; and finally 5) whether it was possible to obtain the audio-visual items reasonably fast and at ordinary commercial prices.
Firstly, it was apparent to the Court that RecordTV's motive in running its website was for commercial gain since it had monetised its service through subscription fees, advertisements and licensing of its technology. Secondly, the audio-visual items in question were the free-to-air programmes offered by MediaCorp. Thirdly, in terms of copying, RecordTV had made available entire programmes on its website and not just parts of the programmes. Fourthly, on the effect of the dealing on the potential market, it was held that there was no realistic market for "recently screened MediaCorp broadcasts". Finally, the last factor was deemed as moot since a consumer is able to obtain the audio-visual content without any charge using a VCR or their cable TV set-top box. As a result, the Court concluded that RecordTV could not rely on fair dealing as a defence.
With the Court finding that RecordTV had indeed authorised the making of copies of MediaCorp's broadcasts and films by its website's end-users and that there was indeed communication of the copyrighted materials to the public, RecordTV lost its groundless threat action against MediaCorp who in turn succeeded in its counterclaim action for copyright infringement against RecordTV. An interlocutory injunction was granted to MediaCorp. RecordTV has filed an appeal against the High Court's decision with the Court of Appeal.
The High Court's decision and the outcome of the subsequent appeal in this case should be of particular concern to website owners who offer a platform for the public to make copies of copyrighted materials without authorization.
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| Kevin Wong and Kiran Dharsan |
Ella Cheong Spruson & Ferguson (Singapore) Pte Ltd
152 Beach Road, #30-00 Gateway East
Singapore 189721
Tel: +65 6333 7200
Fax: +65 6333 7222
mail@ecsf-asia.com
www.ecsf-asia.com